ORAL SUBMISSIONS OF THE APPLICANT
I appear on behalf of the applicant, Mr Blake McKenna. These submissions are made in support of final parenting orders that reflect the core objective of protecting the child’s future, rather than punishing the respondent’s past conduct. The orders sought are as follows:
- That the applicant, Mr Blake McKenna, be granted sole parental responsibility for the child, Winston Carter McKenna, because of the Respondent’s history of family violence and alcohol-related risk, and her proven inability to engage in safe and cooperative decision-making.
- That the child continue to reside with the applicant, who has provided consistent, sober, and protective care in a stable household free from the chaos and emotional harm previously experienced in the respondent’s care.
- That the respondent’s time with the child be subject to supervision, based on the ongoing risk arising from her alcohol misuse, emotional volatility, and breaches of protective orders. Any future increase in time must depend on independent, verifiable evidence of sustained rehabilitation and demonstrated reduction of risk.
These orders are sought under Part VII of the Family Law Act 1975 (Cth) and are anchored in the best interests of the child, as mandated by section 60CA.
The evidence before the Court confirms a consistent and serious pattern of risk, neglect, and psychological harm stemming from the respondent’s conduct. At the same time, it demonstrates the applicant’s unwavering commitment to child-focused and protective parenting.
These submissions will address five key issues, each structured around the relevant statutory provisions and supported by legal authority. Together, they will reinforce the central theme that child safety must be prioritised over parental aspiration.
Following this, I will address and rebut anticipated defences, particularly any suggestion that the respondent is now rehabilitated, or that shared parental responsibility or unsupervised contact could safely resume. As I will submit, rehabilitation must be substantiated by evidence and assessed through the lens of procedural fairness. The law does not deny a parent the opportunity to re-engage. However, it requires them to demonstrate that change, not merely assert it.
Unless Your Honour has any preliminary questions, I will now proceed to the first issue.
Sole Parental Responsibility
The first issue is whether the applicant, Mr Blake McKenna, should be granted sole parental responsibility for the child.
Following the 2024 amendments to the Family Law Act 1975 (Cth), the former presumption of equal shared parental responsibility no longer applies. The Court is now guided by section 61CA, which provides that each parent has parental responsibility unless a Court orders otherwise. Under section 61CC, the Court may allocate sole parental responsibility where it is in the child’s best interests. These interests remain the paramount consideration under section 60CA.
This legal position is supported by Eastick v Burrows [2021] FamCA 458, where the Court found that interim sole parental responsibility could be ordered when there were credible concerns about parenting capacity and psychological harm. In that case, the Court prioritised child safety over speculative rehabilitation, recognising that ongoing risk and lack of insight justified protective orders.
In this matter, the respondent has a well-established and deeply concerning history of alcohol misuse. The most serious incident involved her being found unconscious while responsible for the child, who was left alone in a home filled with smoke from a burning pan. This risk is not theoretical. It is real and serious. These events are verified by Mr McKenna’s affidavit and supported by a final Protection Order issued on 8 March 2024.
The facts of this case align closely with Eastick, where expert evidence demonstrated that a parent’s relapse risk, lack of insight, and pattern of distress to the child warranted sole parental responsibility. The Court in Eastick made it clear: while rehabilitation is desirable, it must never come at the expense of a child’s safety.
Mr McKenna, by contrast, has acted with consistency and maturity. He has engaged therapeutic supports, responded appropriately to risk, and demonstrated protective parenting. His aim is not to punish or exclude the respondent, but to shield the child from further harm. This aligns with the core theme of these submissions, which that the Court’s task is to protect the child’s future.
Accordingly, based on the respondent’s pattern of conduct, the present and ongoing risk of psychological harm, and the absence of parental insight, it is respectfully submitted that sole parental responsibility should be granted to the applicant. This outcome is fully supported by the statutory framework under sections 60CA, 61CA, and 61CC.
Residence with the Applicant
The second issue is whether the child should continue to reside with the applicant.
The legal framework governing residence is found in section 60CC of the Family Law Act, which outlines the factors to be considered when determining the child’s best interests. Under section 60CA, those interests must remain the paramount consideration. Section 60CC(2)(b) specifically requires the Court to prioritise protection from physical or psychological harm.
The evidence strongly supports a finding that residence with the applicant is both protective and beneficial. The child has lived exclusively with the applicant since July 2024. Since then, there has been a clear and measurable improvement in the child’s emotional wellbeing, school attendance, and behavioural regulation.
In contrast, the respondent’s caregiving history was marked by physical punishment, alcohol misuse, and emotional neglect. One of the most serious incidents involved the respondent being found unconscious while the child was left unsupervised in a smoke-filled home. This was not an isolated occurrence. It was part of a broader and troubling pattern of dangerous parenting.
This Court is reminded of the decision in Eastick v Burrows, where all contact was suspended and residence was granted to the protective parent due to the mother’s unresolved substance abuse and lack of insight. The Court emphasised that even therapeutic contact could only occur after demonstrated rehabilitation and sustained compliance. The reasoning in that case is highly applicable here.
Likewise, in McKenzie v Matthews [2008] FamCA 853, the Court awarded residence to a third-party caregiver, the maternal grandmother, after finding that both parents posed an unacceptable risk. The Court placed weight on the child’s stability and recovery in the grandmother’s care. Expert evidence warned of serious emotional deterioration if the child were returned to a harmful environment.
The same principles apply. The applicant has provided a safe, structured home. He balances full-time employment with caregiving responsibilities and supports the child’s connection with his half-sibling, Rika. This stands in stark contrast to the respondent’s pattern of chaos and harm.
It is respectfully submitted that the totality of the evidence shows the child’s best interests are clearly served by remaining in the applicant’s care. The risk of regression and emotional harm if returned to the respondent is not speculative. It is predictable, serious, and avoidable.
Accordingly, in line with sections 60CA and 60CC(2)(b), and guided by the reasoning in Eastick and McKenzie, the Court should make a final order that the child continue to reside with the applicant.
I will now turn to the next issue.
Supervised Time with the Respondent
The third issue is whether the respondent’s time with the child should be subject to supervision.
The relevant legal framework is set out in sections 60CC(3)(c) and (m) of the Family Law Act, which requires the Court to consider each parent’s capacity to provide for the child’s needs, as well as any other fact or circumstance the Court considers relevant.
Supervised time is not about punishment. It is a protective tool. It ensures that a vulnerable child can maintain a relationship with a parent while staying safe, emotionally supported, and developmentally stable. It is a structure built not on distrust alone, but on clear, present risks.
Here, the evidence is not ambiguous. The respondent was found unconscious while the child was present and unsupervised, in a unit filled with smoke from a burning pan. This was not a close call. It was a dangerous, preventable event that endangered the child’s life. The respondent has also exhibited volatility, poor insight, and a pattern of exposing the child to chaotic environments.
In contrast, the applicant has proposed a solution that is protective, proportionate, and child-focused. He does not seek to eliminate contact altogether. Rather, he suggests a clear structure: supervised time either through a Children’s Contact Centre or a third party who is appropriately vetted and agreed to in writing.
This approach mirrors the orders made in Bronson v May (No 2) [2017] FCCA 2317, where supervision was ordered because the child’s safety required it. In that case, even final orders included oversight and structured changeovers to shield the child from further trauma. That reasoning applies squarely to this matter.
The respondent has not produced any independent evidence of rehabilitation. No toxicology screens. No therapy reports. No verified abstinence. The Court cannot rely on intentions. It must rely on evidence. As the law recognises, particularly in family matters, the burden to show change lies with the parent who created the risk.
The proposal here balances two realities. The child has a right to safety and a right to family connection, but one cannot come at the cost of the other. Supervised time preserves the relationship while protecting the child from harm. It also removes the burden from the applicant, who should not be placed in the position of enforcer or gatekeeper.
Accordingly, the Court is respectfully urged to order that the respondent’s time be supervised through a Contact Centre or by a third party agreed in writing, with clear and protective arrangements for changeover.
I will now turn to the fourth issue in these submissions.
Family Violence, Abuse, and the Need for Protective Orders
The fourth issue is whether family violence and abuse have occurred, and how those findings should influence the Court’s parenting orders.
Section 4AB of the Family Law Act 1975 (Cth) defines family violence to include behaviour that coerces, controls, or causes fear. Section 60CC(2A) requires the Court to give primary weight to protecting children from harm, especially where there are credible allegations of abuse. The threshold is not absolute proof beyond reasonable doubt, but a real and continuing risk.
In this case, that threshold has been met.
A final Protection Order was issued on 8 March 2024. While the order was made without admissions, it remains highly relevant to the Court’s risk assessment. Since the Order was made, the respondent has breached it by sending abusive and sexually explicit messages to the applicant. That is not historical misconduct. It is recent, documented, and dangerous. These messages reveal ongoing hostility, a lack of respect for court boundaries, and a serious inability to prioritise the child’s safety.
There are also serious allegations of physical and emotional abuse made by the child. The child has disclosed being struck with a belt and subjected to smacking and emotional outbursts. These claims are supported by the applicant’s affidavit and past Department of Child Safety involvement. The respondent has not meaningfully rebutted these allegations. Nor has she shown insight, remorse, or any effort to engage in therapeutic change.
The Court in Patau v Dallon [2016] FamCA 1039 dealt with a similar pattern. The child refused to spend time with the abusive parent. The non-resident parent had failed to appear. The Court made final orders granting sole parental responsibility to the protective father and leaving contact entirely to his discretion. Foster J concluded that where abuse had occurred and the parent had made no attempt to repair the relationship, the child’s best interests demanded exclusive care.
That principle applies here. Like the child in Patau, the child in this case has lived through abuse, fear, and emotional distress. The Applicant has responded with maturity and legal diligence. He is not seeking to erase the respondent. He is asking the Court to protect the child’s future.
This is not a marginal case. It is a case where the risk has already materialised. The respondent has shown contempt for a court order, inflicted emotional harm, and failed to change. The Court’s role is not to wait until further harm occurs. It is to prevent it.
The respondent may one day be in a position to rebuild trust. But that path must start with accountability and evidence, not excuses and delay. As the Court has repeatedly affirmed, rehabilitation must be earned, not assumed.
Accordingly, it is respectfully submitted that sole parental responsibility should be granted to the applicant and that the respondent’s time with the child must be supervised until such time as real and verifiable change is demonstrated.
This brings me to the fifth and final issue before the Court today
Alcohol Use and Parenting Capacity
The fifth issue is the impact of the respondent’s alcohol misuse on her parenting capacity and whether that risk justifies continued supervision.
Sections 60CC(3)(f) and (k) of the Family Law Act require the Court to assess a parent’s ability to meet the child’s needs and to weigh any background of substance abuse that compromises that capacity.
The respondent’s alcohol misuse is not a historical concern. It is ongoing. She was found unconscious on 5 July 2024 while the child was in her care. The child was left alone in a home filled with smoke, a pan burning on the stove. This is not speculation. It is a serious, confirmed incident. It reflects more than poor judgment. It confirms a pattern of unsafe behaviour.
While the respondent once entered rehabilitation, she relapsed. That relapse was not followed by any verifiable recovery. There is no toxicology evidence. No psychologist’s report. No recovery plan. No meaningful engagement with therapeutic supports. The environment around her remains unstable and unmanaged.
In Fenech v Fenech [2020] FCCA 2569, the Federal Circuit Court addressed these same issues. The mother had collapsed while caring for the child. She had been hospitalised repeatedly and her addiction remained active. The Court found that the child’s safety could not rely on hope or intention. It ordered alcohol testing, therapeutic support, and made time conditional on strict compliance. The message from that decision is clear. Where the risk is real and untreated, supervision is not optional.
That same logic applies here. The respondent has not just failed to demonstrate improvement. She has refused to engage with even the most basic protective measures. She continues to breach orders and has made no attempt to build a safe caregiving environment.
The applicant, by contrast, is stable, sober, and protective. He has acted with restraint, consistency, and integrity throughout. He is not obstructing a relationship. He is safeguarding a childhood.
This is not about penalising the respondent for past conduct. It is about protecting the child from foreseeable danger. The law does not block the respondent from rebuilding a parenting role, but it requires her to do so through evidence, not hope. Compliance, not promises.
Accordingly, it is submitted that the respondent’s time must be supervised and that any increase in contact must depend on strict, verifiable benchmarks, including compliance with alcohol testing, therapeutic engagement, and a structured recovery plan. The child’s safety cannot wait for theoretical change. It must be guaranteed by enforceable orders.
That concludes the fifth issue, which addressed the respondent’s ongoing alcohol misuse and its impact on her capacity to safely parent the child.
If Your Honour has no further questions, I will now move toward closing.
Before I do, I wish to address several defences the respondent may put forward. Respectfully, none of these provide a sound basis for resisting the orders sought. They are without sufficient evidence, lack legal substance, or fail to meet the statutory threshold for the child’s best interests.
I turn now to those rebuttals.
Rebuttal of Possible Defences
Defence of Rehabilitation
The respondent may assert that she has remained abstinent or made efforts to rehabilitate following the 5 July 2024 incident. But there is no independent evidence before the Court verifying this. There are no toxicology results, no reports from therapeutic services, and no consistent engagement with any formal recovery program. The pattern remains one of relapse, breach of court orders, and exposure to high-risk environments. Without credible proof, any claim of change must be treated with caution.
Defence of “Historical Conduct” or “Isolated Incidents”
The respondent may seek to downplay her behaviour as historical or one-off. This is not supported by the record. The Protection Order and its breach are recent. The July 2024 incident placed the child in real and serious danger. Government involvement has spanned years and multiple children. This is not isolated misconduct. It is an ongoing pattern of concern.
Defence of Parental Bond
The respondent is the child’s biological mother. That is not in dispute. But where maintaining a bond would compromise safety, protection must take priority. Section 60CC(2A) makes that plain. The child has voiced fear. He has been exposed to chaos, distress, and real harm. The applicant’s proposal allows that relationship to continue in a structured, safe, and child-focused way. It protects the bond without ignoring the risk.
Defence of Alienation
It may be suggested that the child’s resistance to seeing the respondent stems from manipulation. This is not borne out by the evidence. The applicant has supported contact, arranged transport, and complied with orders. His affidavit is restrained, never inflammatory. By contrast, the child’s reluctance aligns with his own disclosures, observations from professionals, and reports to authorities. This is not alienation. It is a child reacting to experience.
Defence of Financial Instability
If the respondent argues that hardship caused her conduct, the law still places the child’s safety first. Section 60CA demands a child-centred lens. Many parents face adversity, but do not expose their children to harm. The applicant, while working full-time and raising the child alone, has met every obligation and created a safe, nurturing environment. Risk cannot be excused by circumstance.
Defence of Bias
Allegations of systemic unfairness or procedural disadvantage do not change the facts. The Protection Order exists. The incident in July happened. Child Safety has been involved. The respondent’s own messages and affidavit material support the applicant’s claims. This case is about evidence, not grievance.
Defence of “Cultural” or “Personal Parenting” Style
The respondent may assert that cultural or personal preferences shaped her discipline style. But the Court is not assessing preferences. It is assessing safety. Hitting a child with a belt, exposing them to adult material, or leaving them alone while intoxicated crosses a legal threshold. These are not cultural differences. They are risk factors.
Defence Based on Past Primary Care Role
The Respondent may argue she was once the child’s main carer. But circumstances change. Since July 2024, the child has lived with the applicant and is thriving.
Defence of “The Child Wasn’t Harmed”
Lack of visible injury does not mean lack of risk. The law does not require harm to have occurred before it can act. In this case, the child was left unattended around fire, exposed to intoxication, and emotionally impacted. That is enough.
Defence of “Deserving a Second Chance”
The respondent may ask for another opportunity. But children do not get a second childhood. The Court’s role is to protect, not rehabilitate. The applicant’s proposal already allows for a path forward, one that depends on the Respondent demonstrating change through evidence, not intention. That is not exclusion. That is accountability.
Your Honour, these defences do not rebut the evidence. They reinforce the need for firm, protective orders. The law requires the Court to act on risk. The child’s safety cannot depend on speculation or sentiment.
Closing Position
In light of these rebuttals, there remains no lawful, factual, or equitable basis on which the respondent can resist the orders sought. The statutory framework is satisfied. The evidence is consistent and compelling. The applicant’s parenting is protective, child-focused, and aligned with the best interests of the child.
Closing Submission of the Applicant
Your Honour,
These proceedings are not about punishing the past. They are about protecting the future. The orders sought by the applicant are not driven by exclusion, but by care. At every stage, Mr McKenna has acted with restraint, integrity, and unwavering focus on the safety and wellbeing of his son, Winston Carter McKenna.
The evidence shows that Mr McKenna has not just responded to the child’s needs. He has anticipated them. He balances full-time work with hands-on parenting. He provides structure, emotional safety, and therapeutic support. He fosters the child’s relationship with his half-sibling and has never criticised the respondent. His parenting is always centred on what is best for Winston.
By contrast, the respondent has not shown sustained rehabilitation, insight, or reliability. The conduct that led to these proceedings, including being found unconscious while responsible for the child, emotional volatility, and breaches of protective orders, remains unresolved. The risk to Winston is not hypothetical. It is real, current, and unacceptable.
Your Honour, the Family Law Act demands that the child’s best interests remain paramount. Mr McKenna has done so at every turn, not in words alone but through consistent, meaningful action. He has engaged with dispute resolution in good faith. He has supported safe contact arrangements. He has complied with legal processes, cooperated with authorities, and approached this matter constructively and without hostility.
His proposal does not attempt to remove the respondent from the child’s life. It seeks only to contain the risk she presents until such time that the risk is reduced. The proposal is balanced, legally grounded, and genuinely protective.
In closing, it is respectfully submitted that the only course of action consistent with the evidence, the law, and the child’s wellbeing is for the Court to make the following final parenting orders:
- That the applicant be granted sole parental responsibility, based on the respondent’s history of family violence, alcohol misuse, and her inability to engage in safe and cooperative parenting.
- That the child continue to reside with the applicant, who has provided a consistent, nurturing, and protective home environment, free from the risks previously present in the Respondent’s care.
- That the respondent’s time with the child be supervised, with any future increase in time strictly contingent on independent, verifiable evidence of sustained rehabilitation and meaningful behavioural change.
Unless Your Honour has any further questions, those are my submissions.
Thank you.